perjury at Brave New Films

Discussing §512 (f) of the DMCA: Pt. 1--OPG v. Diebold

2008-12-05T08:51:54Z

Discussing §512 (f) of the DMCA: Pt. 1
Online Policy Group v. Diebold

§512 (c) (3) of the Digital Millenium Copyright Act states that a DMCA complaint must identify the work that is being infringed and the work that is being infringed upon. It must provide the name, address, and phone number of the complaining party. And most importantly it must provide:

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

And

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Moreover, 512 (f) states:

"Any person who KNOWINGLY misrepresents . . . that material or activity is infringing. . . shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer . . . who is injured by such misrepresentation, as the result of the service provider relying upon such representation in removing or disabling access to the material or activity claimed to be infringing . . ."

This is the first in a series of videos that will explore these sections of the DMCA in great detail.

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In 2003, Waldon W.O. Dell wrote that he was committed to helping Ohio deliver its electoral votes to President Bush in 2004. What was particularly disturbing about this statement is that Dell was the President and C.E.O. of Diebold, one of the biggest manufacturers of voting machines in the U.S.

http://query.nytimes.com/gst/fullpage.html?res=9804E3DC1339F93AA35752C1A9659C8B63

In 2003, Maryland commissioned a study that revealed that Diebold's voting machines had 328 security flaws, 26 of which were critical.

Diebold was well aware of these security flaws and tons of emails were flying around within the company discussing the problems. Unfortunately for Diebold, an archive of 13,000 internal emails, including some very damning messages, were posted on the internet. You can read a few of these emails, as well as a more thorough discussion of the Diebold fiasco on my website:

http://www.themaskedanalyst.com/Diebold%20v%20OPG.htm

See also this important article by Mary Bridges of Harvard's Berkman Center for Internet & Society.

http://cyber.law.harvard.edu/publications/2004/Diebold_vs_The_Bloggers

Diebold responded to the posting of its email archives by sending DMCA notices not only to the ISPs that hosted the archives, but also to ISPs that hosted websites that just LINKED to the Archives.

The most important passages from the decision in Online Policy Group v. Diebold.

http://www.eff.org/files/filenode/OPG_v_Diebold/OPG%20v.%20Diebold%20ruling.pdf

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THE MOST IMPORTANT PART OF THE RULING:

A party is liable if it "knowingly" and "materially" misrepresents that copyright infringement has occurred. "Knowingly" means that a party actually knew, or should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations. . . ."Material" means that the misrepresentation affected the ISP's response to a DMCA letter. . . .

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The purpose, character, nature of the use, and the effect of the use upon the potential market for or value of the copyrighted work all indicate that at least part of the email archive is not protected by copyright law. The email archive was posted or hyperlinked to for the purpose of informing the public about the problems associated with Diebold's electronic voting machines. It is hard to imagine a subject the discussion of which could be more in the public interest. If Diebold's machines in fact do tabulate voters' preferences incorrectly, the very legitimacy of elections would be suspect.

The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA's safe harobor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.

No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were protected by copyright.

perjury at Brave New Films

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